My name is Verbena Lea, and I am the Executive Director of PARC [Peoples’ Action for Rights and Community] in Eureka. After I phoned the Eureka Rescue Mission Executive Office on November 28, 2010, I received a return call from you the next day at the PARC office. I had back to back appointments and phone calls that day and apologize that I was unable to return your call. I appreciate your quick response; I was informed that you were going through some trying times, and hope you are well today.

I have many concerns about the Eureka Rescue Mission, and have for some time. Here I will share with you some of my concerns and also a request. please send to me, in hard copy and/or electronic versions, the Eureka Rescue Mission’s policies, rules, requirements, and by-laws.

Some of my concerns are related to what is purported to be Mission policy and what is actually enforced or imposed upon some or all of the people wishing to access the services. Much of my knowledge and understanding of the workings and requirements of the Mission are quite disturbing. I also have serious concerns related to the honesty and integrity of your employee, Bryan Hall – with respect to his treatment of program members and others seeking to access services at the Mission, in addition to his influence on Mission policies and attitudes, being that he is in a position of authority. Mr. Hall’s public defense of the fatal police beating of Martin Cotton in August of 2007 was not only incredulous but disconcerting. Furthermore, his indifference to the trauma experienced now and then by other people at the Mission who witnessed the beating puts into question where Mr. Hall’s loyalties truly lie and raises severe concerns as to his sense of humanity and his treatment and consideration of people who utilize Mission resources.

When examining the Eureka Rescue Mission website, I find a number of discrepancies or perhaps omissions in terms of what is stated on the website versus what really happens at the Mission and what is required of people seeking shelter and/or meals at the Mission.

I would like to point out a repeat occurrence that is just one part of a longer list of what I consider unethical and troubling practices of the Eureka Rescue Mission. There are announcements, from time to time, by Mission staff, forbidding certain activities outside of the Mission, for instance, sitting in certain areas of town. These announcements include explicit threats of exclusion from access to food and shelter at the Mission for anyone who engages in such activities. Given the non-threatening and non-violent nature of such ‘forbidden’ activities, such as sitting in certain areas of town, the Mission’s arbitrary rules seem unreasonable, intrusive and oppressive, and appear to emerge from the whims (and fears) of whoever is in charge at the time.

As stated above, I am hereby requesting written and/or electronic copies of the policies, by-laws, and any other written and unwritten rules, requirements, guidelines, tenets, etc. of the Eureka Rescue Mission. My purpose is to gain some clarity as to how the Mission is supposed to be functioning in our community, which I may find is different than how it currently functions. Most important, I think it is critical to have transparency from the Eureka Rescue Mission, not only for myself, but also for the organizations I work with, the people who frequent the Mission, people who may in the future seek to volunteer or receive assistance at the Mission, and the general public. I am aware that the Mission receives consistent monetary and other donations from the community. Integrity demands that the same community be provided the truth, so it may understand how the Mission conducts itself. The community deserves to know, not only how many beds, meals, and sermons occur, but also the systematic indignities that unfortunately are perpetuated by the Eureka Rescue Mission against people who need to utilize its resources. I imagine that your Board of Directors is unaware of some of the nefarious goings-on at the Mission by people in positions of authority and that the Board does not know of some of the unpublished “policies.” Thus, I intend to respectfully make the Board members aware.

Please understand that my request comes from a sincere care for the well-being, rights and dignity of all people. Perhaps my request will present your organization with an opportunity to examine how things are going, tidy up, solidify its position on various aspects of its operations, and tend to any situations or practices of the Mission that are at odds with the humanitarian and empowering example of Jesus Christ.

Thank you for your immediate attention to these matters. Please respond at your earliest convenience. Electronic documents can be sent to this email, and hard copies to the PARC address below.

It’s Crazy To Criminalize Homelessness

WRAP has been documenting the increases of mentally ill people in local jails as a result of diminished funding for mental health treatment and housing, escalation of “nuisance crime” enforcement by police and private security, and expansion of mental health courts.

The scale of this issue is enormous: it is reported that the LA county jail alone houses 3,000 mentally ill people a night. According to the Bureau of Justice Statistics, as many as 64% of people in jails nationwide have mental health problems. In the 1980s and early 1990s, people with severe mental illness made up 6-7% of the jail population. In the last 5 years, this percentage has climbed to 16-30%. Nationwide, there are three times as many people with mental illness in prisons as there are in hospitals; 40% of people with severe mental illness have been imprisoned at some point in their lives; and 90% of those incarcerated with a mental illness have been incarcerated more than once and 30% have been incarcerated ten times or more.

We at WRAP see this ever-increasing incarceration of mentally ill people as part of a trend toward using the criminal justice system to address health and socioeconomic needs. On the ground, this means that mentally ill homeless people who lack adequate access to housing and treatment services are vulnerable to getting caught in the criminal justice system, especially arrest or citation under local “quality of life” or “nuisance crime” laws that include sitting/lying on sidewalks, panhandling, and loitering. Oftentimes, the seriousness of these infractions is escalated to “failure to appear” bench warrants, which require jail time.

To gain a clearer understanding of the scope of the problem, we are conducting outreach to self-identified mentally ill people, service providers, justice system employees, lawyers and researchers. We have also conducted a literature review of Department of Justice reports and periodical pieces. We were stunned to learn that never before has there been systemic outreach to self-identified mentally ill homeless people about this issue.

During the month of August 2010, WRAP did street outreach with 253 self-identified mentally ill homeless people in six cities (Portland, San Francisco, Oakland, Berkeley, Los Angeles and Denver). The National Consumer Advisory Board of the National Health Care for the Homeless Council is doing 350 more in seven cities across the country. We currently have a small sampling of online surveys from 36 frontline service providers. If you or your organization would like to participate in either of these surveys contact staff at WRAP.

The initial responses tell us we need to bring together all the concerned members of local communities and finally start to reverse this trend.

Here’s just some of what the street outreach found:

76% reported being stopped, arrested, or cited due to “quality of life” offenses.

21% reported being incarcerated while 5% reported being referred to a program when brought before court.

29% reported losing their housing or being discharged from a program due to incarceration.

This closely mirrors the initial service provider experiences even though they were not all in the same cities:

Almost 20% of service providers report that their clients’ interactions with police occur because they appear to be homeless.

More than 60% of service providers report that their clients’ interactions with police occur because of drinking related offenses

30% of service providers report that their clients interact with police because they are loitering, 16% report interaction because of jaywalking, and 16% for trespassing.

53% of service providers report that approximately 20% or more of their clients have bench warrants against them.

44% of service providers report that 50% or more of their clients have outstanding tickets.

74% of service providers report that at least 70% of their clients have been arrested.

By looking at and analyzing the experiences of the clients and of the service providers and relating these to the research that been done on issues of decreasing access and increasing criminalization, we will lay the foundation needed for all of us to come together and finally begin to dispel the myth that mental illness and homelessness are the result of people choosing a lifestyle and that service providers are incompetent. These claims have gone unanswered far too long and the result, as we all see, is killing us.

While re-funding housing and treatment services might seem to be a logical response, local and state governments, with the support of the Federal Department of Justice have instead been implementing Homeless and Mental Health courts. In the last 10 years, the number of Mental Health Courts in the U.S. has increased from 4 to 120.

In theory, the mental health court system is a collaborative effort between judges, prosecutors, defense attorneys, caseworkers, and mental health professionals aimed at figuring out an appropriate treatment plan for the offender. Some recent studies suggest that mental health courts substantially reduce recidivism, and others have shown that participation in mental health court increased defendants’ access to long-term care. Which would seem to disprove the whole services resistant argument, which is so prevalent in the creation of these courts.

However, mental health courts also have significant drawbacks. In order to gain access to the mental health court, defendants must plead guilty to the crime they are accused of and agree to adhere to the courts recommendations or be remanded to the traditional court. These conditions are coercive and can also perpetuate the criminalization of people with mental illness. As one service provider noted, “in Mental Health court, people are often “remanded to custody” for non-compliance with court case management, which includes medications. To jail someone for not taking medication, especially if it is medication that causes extremely adverse side effects, is questionable from a legal standpoint, and from a treatment standpoint, it is barbaric. Everything described above then happens: people [lose] their income, health insurance, housing, and everything else.”

WRAP seeks to ensure that jails do not replace community-based mental health treatment services and that the hundreds of millions of dollars that are currently funding the whole bureaucratic process of criminalizing people instead be applied as an initial down payment towards the housing and treatment that is not only much more humane, but in the long run, much more affordable as well.

We’ll use our collective strengths, organizing, outreach, research, public education, artwork and direct actions. We will continue to expand this network of organizations and cities and we will train ourselves to ultimately bring down the whole oppressive system of policing poor people and poverty as a non-human broken window to be discarded and replaced.

A December 7, 2010 interview with Paul Boden, organizer with WRAP, the Western Regional Advocacy Project, about San Francisco’s Sit-Lie ordinance, & other policies across the country that criminalize the homeless and the poor.

The “soup wars” continue… If you don’t buy it, if you don’t sell it- you’re a criminal. And not everybody who eats free food is homeless. The State just wants to make sure people who are really hungry and don’t have money, can’t eat.

Sidewalks Are For The People

In 2009, cops in San Francisco cited homeless people 2600 times just for being asleep That’s almost as many arrests as for all violent crimes combined. And yet late that year, the most cynical of the city’s politicians determined that what was really needed was a new law to address the aspects of homelessness they claimed to find most objectionable: A law that would make it a crime to… sit down.

San Francisco tried a sit/lie law in 1968. It was found unconstitutional thrice before being taken off the books. Police chief-turned-mayor Frank Jordan tried to introduce such a law again in 1994, but it was ultimately rejected by the voters. But the immediate impetus behind the proposed sit/lie law came from Portland. Portland has had a series of sit/lie laws that have been struck down by state courts, but despite these failures, a trip to Portland sponsored by the San Francisco Chamber of Commerce led conservative politicos to think that such a law might be a good idea for San Francisco.

STAND AGAINST SIT/LIE

The media hysteria that followed the early proposals of a new sit/lie law focused on homeless youth living in and near Golden Gate Park and the historic Haight-Ashbury neighborhood. According to the SF Chronicle these youth weren’t homeless: They were Devil-may-care trust-fundies reveling in smack and booze on mummy and daddy’s dime, whilst terrorizing the neighborhood with their pit bulls. Residents of the Haight were scared to leave their houses. Several of the stories reported in the mainstream press about atrocities committed by homeless youth were proven to be false, and the neighborhood’s only residents’ association opposed a sit/lie law, but spurred on by conservative columnists Mayor Gavin Newsom was able to appear to be responding to a neighborhood demand when he submitted the law to the San Francisco Board of Supervisors.

The Chamber of Commerce stalked the corridors of City Hall, threatening Supervisors with an election war chest of $400,000 to support the sit/lie law and lend support to candidates who would do the same. Homeless people comprise maybe 2.5% of the population in the City of San Francisco and through smart organizing and advocacy, the SF Coalition on Homelessness has been able to wield an influence disproportionate to its size, but their volunteers and organizers ran into a lot of weak handshakes and frozen smiles. “We can’t just be the party of ‘No,’” Supervisors would object.

Homeless people testified in front of the Youth Commission and won that body’s opposition to a sit/lie law. They also persuaded the Planning Commission to register its opposition to sit/lie. Even the Small Business Commission refused to support the sit/lie law as it was written, suggesting that a slightly less draconian version might be more palatable. And still the Board of Supervisors vacillated between conscience and fear.

Most of the staff and volunteers of the Coalition on Homelessness had been homeless, but none were “just” homeless: They had experienced homelessness because they were queer, because they were immigrants, because of the structural inequalities in our country that lead to poverty. They reached out, and their broader communities responded. Soon, we had a large committee that truly represented the queer liberation movement, organized labor, day laborers, sex workers, and many other members of the community who had simply been persuaded to give a damn.

SIDEWALKS ARE FOR PEOPLE

The members of this broader coalition outreached to drop-in centers and cafés, galleries, bars, and tenants’ organizations. They carried flyers bearing the slogan “Stand Against Sit/Lie!,” picturing the many ways in which sitting had been criminalized in the past: A sit-in at the Woolworth’s in Greensboro. Sit-ins against the British Raj in India. Drag queens and transgender women at the Compton Cafeteria in San Francisco. Rosa Parks in Montgomery.

The message was heard, and an unexpected group of San Franciscans heeded the call: Public Space Advocates. In March groups organized a citywide event under the banner “Sidewalks are for People!” Everyday San Franciscans from all walks of life would take to the sidewalks for an afternoon, cop a squat, and just do whatever they pleased — Chess games. Poetry readings. Barbecues. Chalk art. Even a hot tub. The first action was phenomenal, with over a hundred actions and literally thousands of participants.

Between the broadened pressure from the many sectors of the community who now recognized sit/lie—and even homelessness—as *their* issue, and the creative and popular appeal of the Sidewalks are for People actions. the tide turned. Conservative columnists held out, but the media had a hard time resisting the appeal of the campaign, and coverage ceased to be completely one-sided.

Organizers for the campaign obtained a permit to hold a rally on the steps of City Hall the day of the Board of Supervisor’s decision. Homeless youth, day laborers, a union representative, a spokesperson for a queer organization, a civil rights attorney, and a supportive member of the Board were to speak. When they got there, they found that the Sheriff’s Department had barricaded the steps of City Hall, and a line of police stood behind the barricades with arms crossed. For a permitted protest from a group that had always been law-abiding, this was unprecedented. But organizers sat down on the sidewalk, and held their rally anyhow. When they got inside, the Board voted 8-to-3 to oppose the law, with even the moderate members of the Board speaking out against the potential infringements upon civil liberties.

We had won.

IF AT FIRST YOU DON’T SUCCEED, BUY, BUY AGAIN…

Rebuffed by the Board, the Mayor promptly placed sit/lie on the ballot. A truism of San Francisco politics is that neighborhood elections, favor progressive politics: Progressives have the neighborhood infrastructure and the community organizations to create powerful campaigns on a truly local level. But citywide elections favor conservatives, who are able to far outspend progressives. If he couldn’t get his way through the Board, Mayor Newsom was going to bank on… bankers.

Over the course of the summer, the campaign supporting a sit/lie law (calling itself the “Civil Sidewalks Coalition”) spent $411,000 persuading San Franciscans that such a law would create order in the city. The vast majority of this money came from the financial sector, including presidents and partners from Charles Schwab, Morgan Stanley, and the Bank of America. Commercials prominently featuring the Chief of Police were aired throughout the lead-up to the playoffs, during the championship and after each World Series game.

With a budget of less than $10,000, the opponents of the law—the Sidewalks are for People Coalition—put up a mean fight. They designed engaging tabloids and door-hangers, and went door-to-door in projected swing neighborhoods. They maintained a place in the media, through creative actions that included multiple drag shows, the musical genius of the Brass Liberation Orchestra, and a religious revival led by the renowned Reverend Billy.

In the end, however, the Sit/Lie law passed with 54% of the vote, aided by the phenomenal inequality of the campaign budgets, buying air time during the SF Giants success, the sense among many occasional voters that it would never pass in San Francisco, and a low voter turn-out in the two poorest districts.

THIS FIGHT AIN’T OVER

The night of the election, as results came in, spontaneous sit-ins happened in three different parts of the city. Within a week, hundreds of people got involved in other protests, organized by people who had not previously been part of the campaign. With core campaign organizers exhausted or burnt out, other organizations began planning their own actions. In a very, very important sense, we won: This was not something that other progressives in San Francisco had just let happen to homeless people: When we lost, we *all* lost. And there was no way we were going to take this loss lying down. Well… Maybe defiantly lying down.

Community groups have coalesced around the recognition that criminalizing any one group of us criminalizes us all. Saturday, December 18, we held the first Sidewalks are for People Day since the election, reclaiming the sidewalk now that sidewalk rest has become criminalized. With hundreds of people and over a dozen actions, this fight is not over yet.

At the same time, the Coalition on Homelessness has begun developing documentation and know-your-rights trainings for members of our community who are cited or threatened with citation. Simultaneously, attorneys from the ACLU and Disability Rights Advocates, as well as independent attorneys, have begun work developing legal strategies to challenge what we believe to be an unconstitutional law.

Through coordinated documentation, litigation, and through public pressure on our legislators, on a new mayoral administration, on the media, and on the consciences of our fellow San Franciscans, we know ultimately we will win.

WRAP was formed to unite the voices, talents and energy of the awesome
social justice work happening locally in our communities throughout the West
Coast. Through our member groups’ outreach, community forums, WRAP
workgroups, and collective actions, we are creating a unified message that
amplifies the voices of the many organizations that fight for poor people.
Our widely distributed and updated report Without Housing (2006 & 2010) has
established us as a recognized presence – both in Washington DC and across
the country.

Did you know That the Eureka Rescue Mission…

prohibits gay people from being there?

Did you know that the Mission

sends out spies to watch what people do when they are not at the Mission, and kicks them out if found, for instance, smoking pot?

Did you know that

even after Martin Cotton was beat to death by Eureka Police in front of many people who stay at the Mission, and even though the police target people who are homeless and stay at the Mission, Bryan Hall (Mission Director) has the men who use the Mission do free labor cleaning up around the police station?

Recently, Bryan Hall, was overheard talking with Eureka Police Officers on the phone about “cleaning up” behind the Ingomar Club- and “running everyone [homeless people] out of there.”

Did you know?…

When Bryan Hall, who was the Mission’s House Manager when Martin Cotton was fatally beaten by the cops, LIED PUBLICLY and said that the cops did nothing excessive to Martin, he [Bryan] was ON PAROLE?

Today the 9th Circuit Court of Appeals granted me a new trial against the City for its actions in harassing, excluding, and arresting me for making a mock-Nazi salute at a March 2002 City Council meeting after the Mayor had threatened a diminutive peace activist with arrest for stepping up to the microphone in search of her Oral Communications time. I’ll be posting a link to the full decision shortly, But in the meantime, I invite Free Speech advocates to savor a few of the phrases used by the unanimous court as well as a few stronger ones used by the two judges who would have defended my rights even further.

In an earlier article (“9th Circuit Court Slaps Santa Cruz City Attorney in Mock-Nazi Salute Case” at http://www.indybay.org/newsitems/2010/06/28/18652079.php), I I discuss the 10-judge hearing down in Pasadena this summer and how badly City Attorney Kovocevitch’s arguments came off. For once, it seemed, judges were actually listening.

This case concerns the civil rights of advocates in a stacked forum (City Council) which has traditionally been hostile to homeless civil rights on the streets. Many people rightly wonder, “why bother with City Council anyway?” After years of frustration, I don’t really have a good answer.

A body stacked with neo-liberal gentrification maestros masquerades as progressives or “moderates”. It has legislated away civil rights for the poor on the streets and continues to make the act of sleeping at night outside (in a city with no shelter for 85% of its homeless). The point: to establish a “comfort zone” for the frightened and prejudices, whose legitimate concerns about housing, health care, jobs, the war, and the economy are being displaced onto “the smelly homeless”. “Quality of life” is to be regained under this deluded theory by driving the poor out of sight and out of town instead of ending the economy-devouring Imperial War Machine and the lopsided wealth distribution.

Some courts, we can see, still defend the right to attend a Council meeting and speak there for three minutes (even if you can’t get your subject on the agenda). But this whole issue doesn’t mean much in the day-to-day homeless life where basic concerns are denied like the basic right to sleep legally somewhere), the right to not have one’s property searched and seized arbitrarily, the right to protest these conditions, the right to fair treatment by public agencies and private businesses, etc.

Still, while I’d have much preferred to see a successful assault on the Sleeping Ban (as was the case in L.A., San Diego, Fresno, and Laguna Beach), this seemed a good well-documented opportunity to force the City Council to cut back on its repression. This arrest in March of 2002 was the latest in a cycle of repressive incidents.

The cycle of repression has continued. With Mayor Coonerty coming back into power with a right-wing majority on the Council, the federal courts and the streets may be the only avenues of redress.

Hopefully this court decision–and a subsequent victory in the trial–will make the Coonerty Council and its cops more reluctant to stifle regular human dialogue and protest at City Council. And perhaps cut short some of its homeless-ophobia downtown.

There were some strong and encouraging statements made by the 10-judge panel:

THE ENTIRE 10-JUDGE PANEL unanimously wrote:

“The City contends that only certain portions of its meetings are limited public forums and that no members of the public have any First Amendment rights at all once the public comment period has concluded. The City cites no support for this proposition, and there is none.

In City of Norwalk, we held that city council meetings, once open to public participation, are limited public forums. 900 F.2d at 1425. A council can regulate not only the time, place, and manner of speech in a limited public forum, but also the content of speech—as long as content-based regulations are viewpoint neutral and enforced that way.

What a city council may not do is, in effect, close an open meeting by declaring that the public has no First Amendment right whatsoever once the public comment period has closed. As we explained in Norwalk, the entire city council meeting held in public is a limited public forum. But the fact that a city may impose reasonable time limitations on speech does not mean it can transform the nature of the forum by doing so, much less extinguish all First Amendment rights. A limited public forum is a limited public forum. Perhaps nothing more, but certainly nothing less. The City’s theory would turn the entire concept on its head.

Thus, even though we can tell from the face of the amended complaint that Norse’s provocative gesture was made after the public comment period closed, Norse still had a First Amendment right to be free from viewpoint discrimination at that time. The City’s argument proves the danger of its theory. The City contended at oral argument before us that, because the public had no First Amendment rights after the public comment period had closed, the Council could legitimately eject members of the public who made a “thumbs down” gesture, but allow members of the public who made a “thumbs up” gesture to remain.11

We note that we have been unable to find a single First Amendment case where a person has the right to be in a place but has no First Amendment rights once there. Rather, the First Amendment test itself accounts for the nature of the forum and, at its most restrictive, only permits viewpoint neutral restrictions that are “reasonable in light of the purpose served by the forum.”) (“[S]tudent First Amendment rights are applied in light of the special characteristics of the school environment.”) (“[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.”).

When queried at oral argument whether that action would constitute classic viewpoint discrimination, the City responded that it was “just human nature.” We decline the City’s invitation to rewrite First Amendment law to extinguish the rights that citizens have when they attend public meetings.

We also decline the City’s invitation to rewrite the rule announced in Norwalk. There, we held that a city’s “Rules of Decorum” are not facially over-broad where they only permit a presiding officer to eject an attendee for actually disturbing or impeding a meeting. In this case, the City argues that cities may define “disturbance” in any way they choose. Specifically, the City argues that it has defined any violation of its decorum rules to be a “disturbance.” Therefore, it reasons, Norwalk permits the City to eject anyone for violation of the City’s rules—rules that were only held to be facially valid to the extent that they require a person actually to disturb a meeting before being ejected.

We must respectfully reject the City’s attempt to engage us in doublespeak. Actual disruption means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary disruption. The City cannot define disruption so as to include non-disruption to invoke the aid of Norwalk.

The city officials are not entitled to absolute immunity. Local legislators are absolutely immune from liability… But “not all governmental acts by . . . a local legislature[ ] are necessarily legislative in nature.”. “Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.” Thus, we must determine whether the actions of the Council members, when “stripped of all considerations of intent and motive,” were legislative rather than administrative or executive.

In this Circuit, we have developed a four-part test to determine whether an action is legislative in nature. We consider (1) whether the act involves ad hoc decisionmaking, or the formulation of policy; (2) whether the act applies to a few individuals, or to the public at large; (3) whether the act is formally legislative in character; and (4) whether it bears all the hallmarks of traditional legislation.”

In this case, we are dealing with city officials who ejected one individual from City Council meetings. Separately, and with regard to his argument for municipal liability, Norse argues that the officials were formulating policy. We need not determine whether the ejections “effectuate[d] policy,” because the second, third, and fourth factors clearly point to this being an administrative rather than legislative act. Thus, Krohn, Kennedy, and Fitzmaurice are not entitled to absolute immunity for their part in removing Norse from the meetings. Although the record is incomplete, it appears that in both 2002 and 2004 Norse was singled out for expulsion and arrest. Mayors Krohn and Kennedy did not take any formal legislative action, but rather ordered Norse out of the room. And both expulsions lacked the hallmarks of the legislative process.

With respect to the 2002 arrest, Krohn ordered Norse to leave on Fitzmaurice’s motion without any debate. The motion was predicated on the “dignity” of the council rather than the council’s performance of its obligations to the citizens of Santa Cruz. And with respect to the 2004 arrest, the record does not reveal a motion based even on dignity, let alone a legislative decisionmaking process. Thus the decisions to expel Norse were administrative, not legislative, so the defendants are not entitled to absolute immunity.

Chief Judge KOZINSKI, with whom Judge REINHARDT ADDITIONALLY WROTE:

I join Judge Thomas’s opinion because it’s clearly right. I write only to observe that, even after the procedural irregularities that deprived Norse an opportunity to present evidence,

it’s clear that the council members aren’t entitled to qualified immunity. In the Age of YouTube, there’s no need to take my word for it: There is a video of the incident that I’m “happy to allow . . . to speak for itself.” see http://www.youtube.com/watch?v=ZOssHWB6WBI (last visited Nov. 16, 2010).

This video (also found in the record) clearly shows that Norse’s sieg heil was momentary and casual, causing no disruption whatsoever.

It would have remained entirely unnoticed, had a city councilman not interrupted the proceedings to take umbrage and insist that Norse be cast out of the meeting. Councilman Fitzmaurice clearly wants Norse expelled because the “Nazi salute” is “against the dignity of this body and the decorum of this body” and not because of any disruption. But, unlike der Führer, government officials in America occasionally must tolerate offensive or irritating speech.

The Supreme Court long ago explained that “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Even in a limited public forum like a city council meeting, the First Amendment tightly constrains the government’s power; speakers may be removed only if they are actually disruptive.

We’ve said so twice. In White v. City of Norwalk,we explained that speech must “disrupt[,] disturb[ ] or otherwise impede[ ] the orderly conduct of the Council meeting” before the speaker could be removed. …We upheld a spectator’s ejection from a public meeting only because he was “disrupting the proceedings by yelling and trying to speak when it was not time for” discussion..

Had he been given a chance, Norse could no doubt have presented lots more evidence that he never disrupted the Santa Cruz council meeting, but what would have been the point? The video speaks for itself: Norse raises his hand in a brief, silent protest of the mayor’s treatment of another speaker. The mayor ignores Norse’s fleeting gesture until Councilman Fitzmaurice throws a hissy fit.

“Listeners’ reaction to speech is not a content-neutral basis for regulation. . . . Speech cannot be . . . punished or banned[ ] simply because it might offend a hostile” member of the Santa Cruz City Council. The council members should have known that the government may never suppress viewpoints it doesn’t like. Though defendants point to Norse’s reaction to Councilman Fitzmaurice as the “disruption” that warranted carting him off to jail, Norse’s calm assertion of his constitutional rights was not the least bit disruptive.

The First Amendment would be meaningless if Councilman Fitzmaurice’s petty pique justified Norse’s arrest and removal.

Even viewing the facts most favorably to the city council members, their behavior amounts to classic viewpoint discrimination for which they’re not entitled to qualified immunity. And that’s what the district court should have held when it set about resolving qualified immunity as a matter of law. If it was going to take it upon itself to grant summary judgment to anyone on that issue, it should have been to Norse.

On remand, the district court can set things right by holding, as a matter of law, that the city council members are not entitled to qualified immunity, and proceeding to assess damages.

ATTORNEY BEAUVAIS TO DISCUSS CASE THURSDAY DECEMBER 16TH ON FREE RADIO SANTA CRUZ

At 7 PM one of the two attorneys who argued the case before the court (and has fought this battle before a district judge (twice) and the court of appeals (twice) will discuss the case and its significance at 101.1 FM (http://www.freakradio.org). Call in questions and comments at 831-427-3772.